Mohr v. Mohr ( 2015 )

Decisions of the Nebraska Court of Appeals
772 22 NEBRASKA APPELLATE REPORTS
Lola M. Mohr, appellant, v.
Mark L. Mohr, appellee.
___ N.W.2d ___
Filed February 17, 2015. No. A-14-416.
1. Appeal and Error. Although an appellate court ordinarily considers only those
errors assigned and discussed in the briefs, the appellate court may, at its option,
notice plain error.
2. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
3. ____: ____. An appellate court has a duty to determine whether it has jurisdic-
tion over the matter before it irrespective of whether the issue of jurisdiction was
raised or considered by the district court.
4. Limitations of Actions: Dismissal and Nonsuit. An action is commenced on
the date the complaint is filed with the court. The action shall stand dismissed
without prejudice as to any defendant not served within 6 months from the date
the complaint was filed.
5. Statutes: Pleadings: Dismissal and Nonsuit: Words and Phrases. The lan-
guage of Neb. Rev. Stat. § 25-217 (Reissue 2008) providing for dismissal of
unserved petitions is self-executing and mandatory.
6. Dismissal and Nonsuit. The only way to ensure that an unserved action stands
dismissed, as required by statute, is to hold that such dismissal occurs by opera-
tion of law, without predicate action by the trial court.
7. ____. Once an action is dismissed by operation of law, any further orders by the
district court, except to formalize the dismissal, are a nullity.
8. Divorce: Jurisdiction. The district court in which an original divorce decree was
entered has continuing jurisdiction until all of the children of the marriage are of
legal age or emancipated.
9. Modification of Decree: Child Custody. A proceeding to modify custody is
commenced by filing a complaint to modify.
10. Modification of Decree: Service of Process. Service of process of a modifica-
tion complaint is to comply with the requirements for a dissolution action.
Appeal from the District Court for Gage County: Paul W.
Korslund, Judge. Reversed and remanded with directions.
Lola M. Mohr, pro se.
F. Matthew Aerni, of Berry Law Firm, for appellee.
Irwin, Riedmann, and Bishop, Judges.
Decisions of the Nebraska Court of Appeals
MOHR v. MOHR 773
Cite as 22 Neb. Ct. App. 772
Riedmann, Judge.
INTRODUCTION
The district court for Gage County modified the original
dissolution decree and awarded Mark L. Mohr custody of the
parties’ minor children. Lola M. Mohr now appeals. Because
we determine that Lola was not served with a copy of the
modification complaint within 6 months from the date it was
filed, we reverse the judgment and remand the cause to the
district court with directions to vacate the modification order
and to enter an order that Mark’s complaint for modifica-
tion stands dismissed pursuant to Neb. Rev. Stat. § 25-217
(Reissue 2008).
BACKGROUND
Lola and Mark’s marriage was dissolved in 2004. The decree
awarded custody of the minor child involved herein, a daughter
born in 1997, to Lola, subject to Mark’s parenting time.
On April 17, 2013, Mark filed a complaint to modify
custody. After several attempts, Lola was served with the
complaint for modification in person on October 30. Because
she never filed an answer or otherwise responded, Mark
moved for default judgment on February 12, 2014. A hearing
was held on March 10, at which Mark testified and Lola did
not appear.
Subsequent to the hearing, the district court entered an
order of modification. It found that a material change in cir-
cumstances existed and that it was in the minor child’s best
interests that her custody be awarded to Mark. The district
court also ordered Lola to pay $442 per month in child support
to Mark.
Lola filed a document that the court construed as a motion
for new trial. After hearing, the court denied the motion. Lola
timely appealed to this court.
ASSIGNMENTS OF ERROR
Lola failed to specifically assign errors in accordance with
the Supreme Court’s rules of appellate practice. See Neb. Ct.
R. App. P. § 2-109(D)(1)(e) (rev. 2014).
Decisions of the Nebraska Court of Appeals
774 22 NEBRASKA APPELLATE REPORTS
STANDARD OF REVIEW
[1] Although an appellate court ordinarily considers only
those errors assigned and discussed in the briefs, the appellate
court may, at its option, notice plain error. Connelly v. City of
Omaha, 284 Neb. 131, 816 N.W.2d 742 (2012).
ANALYSIS
[2-4] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. Dillion v. Mabbutt, 265
Neb. 814, 660 N.W.2d 477 (2003). This is true irrespective
of whether the issue of jurisdiction was raised or considered
by the district court. Sarpy Cty. Bd. of Comrs. v. Sarpy Cty.
Land Reutil., 9 Neb. Ct. App. 552, 615 N.W.2d 490 (2000). To
determine whether we have jurisdiction, we must examine
§ 25-217. This statute states that an “action is commenced
on the date the complaint is filed with the court. The action
shall stand dismissed without prejudice as to any defendant
not served within six months from the date the complaint
was filed.”
[5-7] The language of § 25-217 providing for dismissal of
unserved petitions is self-executing and mandatory. Dillion
v. Mabbutt, supra. The only way to ensure that an unserved
action stands dismissed, as required by statute, is to hold that
such dismissal occurs by operation of law, without predicate
action by the trial court. See Vopalka v. Abraham, 260 Neb.
737, 619 N.W.2d 594 (2000). Once an action is dismissed by
operation of law, any further orders by the district court, except
to formalize the dismissal, are a nullity. See id.
In this case, Mark filed his complaint to modify the dissolu-
tion decree on April 17, 2013, and Lola was not served until
October 30. More than 6 months elapsed between the filing and
the service of the complaint; therefore, any orders entered after
October 17 are a nullity.
[8-10] We recognize that this was an action for modifi-
cation and not an original dissolution action. We are also
cognizant that the district court in which the original divorce
decree was entered has continuing jurisdiction until all of the
children of the marriage are of legal age or emancipated. See
Decisions of the Nebraska Court of Appeals
MOHR v. MOHR 775
Cite as 22 Neb. Ct. App. 772
Nemec v. Nemec, 219 Neb. 891, 367 N.W.2d 75 (1985). We
also are aware that the Nebraska Supreme Court has stated
that an application to modify the terms of a divorce decree is
not an independent proceeding. Id. However, in 2004, Neb.
Rev. Stat. § 42-364 (Reissue 1998) was amended to include
a provision requiring that a proceeding to modify custody be
commenced by filing a complaint to modify. See 2004 Neb.
Laws, L.B. 1207 (now codified at Neb. Rev. Stat. § 42-364
(Cum. Supp. 2014)). By that amendment, service of process of
a modification complaint is to comply with the requirements
for a dissolution action. Id. We have refused to allow modi-
fication of a divorce decree where modification was sought
without the proper filing of a complaint. See Wilson v. Wilson,
19 Neb. Ct. App. 103, 803 N.W.2d 520 (2011). We find no author-
ity to except dissolution actions from the requirement of
§ 25-217, and we therefore determine that the requirement of
service within 6 months is applicable to modification actions.
Because Lola was not served within 6 months from the date
the complaint to modify was filed, the district court’s orders
modifying custody and denying Lola’s motion for new trial
were a nullity.
CONCLUSION
Mark’s failure to perfect service upon Lola within 6 months
of the date on which he filed his modification complaint
resulted in the dismissal of the case by operation of law.
Therefore, the district court’s subsequent orders were a nullity.
Accordingly, we reverse the judgment and remand the cause
to the district court with directions to vacate the modification
order and to enter an order that Mark’s complaint stands dis-
missed pursuant to § 25-217.
R eversed and remanded with directions.